LCP4804 EXAMINATION ANSWERS 2023
QUALITY ANSWERS.
FOOTNOTES AND BIBLIOGRAPHY PROVIDED
06 NOVEMBER 2023
QUESTION 1
(a) Write down the definition of customary law as it appears from section 1 of the
Recognition of Customary Marriages Act 120 of 1998; and then use its wording
to explain the nature, role and function of this component of the South African
legal system as appears from case law.
A) According to section one of the Recognition of Customary Marriages Act customary
law means 1“the customs and usages traditionally observed amongst the indigenous
African people of South Africa and form part of the culture of those people.” In Alexkor
The Richtersveld Community & Others the Constitutional court defined the nature and
concept of customary law as: The nature and the content of the rights that the
Richtersveld Community held in the
subject land prior to annexation must be determined with reference to
indigenous law. 2That is the law which governed its rights. The privy Council has
held that the dispute between indigenous people such as the right to occupy a
piece of land has to be determined according to indigenous law without importing
English conceptions of property law. Indigenous law used to be seen as part of
the common law, now it is seen as an integral part of our law. Its validity
depends upon the Constitution and not the common law. The courts are
obliged by section 211(3) of the Constitution to apply indigenous law wherever it
is applicable. The Constitution recognizes the originality and distinctiveness of
1Customary Marriages Act, Act No. 120 of 1998
2Alexkor (Pty) Ltd and Another v The Richtersveld Community & Others, 2003 (12) BCLR 1301 (CC) (Constitutional
Court of South Africa).
, indigenous law as an independent source of norms within the legal system.
Indigenous law is not affixed body of formally classified and easily ascertainable
rules. Its very nature suggests that it evolves as the people who live by its norms
change their patterns of life. Unlike common law, indigenous law is not written. It
is a system of law that was passed from one generation to another. It has
evolved throughout history and developed to meet the changing needs of the
community. It will continue to evolve within the context of its values and norms
consistently with the Constitution.
B. i) Section 11 of the Black Administrations Act was interpreted in the same way as
its predecessors. In Natal, this meant that customary law applied to all the Natives in all
possible transactions, including some economic transactions and common
law in foreign transactions or those with non-Africans. The Cape followed the
Transkei and applied customary law only to mattrers of personal law where ther
was no Roman-Dutch law. In Bhe vs Magistrate Khayalitsha; Human Rights
Commission v The President of The Republic of South African & Shubi v Sithole
the following was held: The Native Administration Act 38 of 1927 appointed the
governor general as “supreme chief of all Africans”. It gave him the power to
govern all Africans by proclamation. The powers given to him were virtually
absolute. He could order the removal of an entire African community from one
place to another. The National Administration Act became the most powerful tool
in the implementation of forced removals of Africans from the so called white
areas into areas reserved for the. These removals resulted in untold suffering.
In Ex parte; Minister of Native Affairs- In Re Yako v Beyi, it was held that it found
no support in the language of act 38 (NAA) that Native law should be treated as
prima facie applicable in cases between Natives. He stated on the contrary, that
QUALITY ANSWERS.
FOOTNOTES AND BIBLIOGRAPHY PROVIDED
06 NOVEMBER 2023
QUESTION 1
(a) Write down the definition of customary law as it appears from section 1 of the
Recognition of Customary Marriages Act 120 of 1998; and then use its wording
to explain the nature, role and function of this component of the South African
legal system as appears from case law.
A) According to section one of the Recognition of Customary Marriages Act customary
law means 1“the customs and usages traditionally observed amongst the indigenous
African people of South Africa and form part of the culture of those people.” In Alexkor
The Richtersveld Community & Others the Constitutional court defined the nature and
concept of customary law as: The nature and the content of the rights that the
Richtersveld Community held in the
subject land prior to annexation must be determined with reference to
indigenous law. 2That is the law which governed its rights. The privy Council has
held that the dispute between indigenous people such as the right to occupy a
piece of land has to be determined according to indigenous law without importing
English conceptions of property law. Indigenous law used to be seen as part of
the common law, now it is seen as an integral part of our law. Its validity
depends upon the Constitution and not the common law. The courts are
obliged by section 211(3) of the Constitution to apply indigenous law wherever it
is applicable. The Constitution recognizes the originality and distinctiveness of
1Customary Marriages Act, Act No. 120 of 1998
2Alexkor (Pty) Ltd and Another v The Richtersveld Community & Others, 2003 (12) BCLR 1301 (CC) (Constitutional
Court of South Africa).
, indigenous law as an independent source of norms within the legal system.
Indigenous law is not affixed body of formally classified and easily ascertainable
rules. Its very nature suggests that it evolves as the people who live by its norms
change their patterns of life. Unlike common law, indigenous law is not written. It
is a system of law that was passed from one generation to another. It has
evolved throughout history and developed to meet the changing needs of the
community. It will continue to evolve within the context of its values and norms
consistently with the Constitution.
B. i) Section 11 of the Black Administrations Act was interpreted in the same way as
its predecessors. In Natal, this meant that customary law applied to all the Natives in all
possible transactions, including some economic transactions and common
law in foreign transactions or those with non-Africans. The Cape followed the
Transkei and applied customary law only to mattrers of personal law where ther
was no Roman-Dutch law. In Bhe vs Magistrate Khayalitsha; Human Rights
Commission v The President of The Republic of South African & Shubi v Sithole
the following was held: The Native Administration Act 38 of 1927 appointed the
governor general as “supreme chief of all Africans”. It gave him the power to
govern all Africans by proclamation. The powers given to him were virtually
absolute. He could order the removal of an entire African community from one
place to another. The National Administration Act became the most powerful tool
in the implementation of forced removals of Africans from the so called white
areas into areas reserved for the. These removals resulted in untold suffering.
In Ex parte; Minister of Native Affairs- In Re Yako v Beyi, it was held that it found
no support in the language of act 38 (NAA) that Native law should be treated as
prima facie applicable in cases between Natives. He stated on the contrary, that
